Newsweek: Civil Wars

Wow, a huge corporate media outlet condemning the only course of action normal people have against big business. I guess it's easier to write about the few abuses than it is to write about the many cases where people used the system to find justice.

Beyond the whole corporate angle and looking at this from a societal standpoint, don't you think there is a small problem with frivolous lawsuits?

Is it a necessary evil per se or something that should be seriously looked at?

It is out of hand, the amount of insurance doctors have to pay is ridiculous, and driving our health care costs too much.

I was talking about this subject last night with a friend from Spain. Told me that there, you get fined if your lawsuit turns out to be frivolous.

I agree that the cost of insurance is way too high, but what other recourse is there where doctors mess up and a person's health or life is ruined or lost? $100,000 in medical bills and a permanent disability because a doctor messed up? As it stands in my state, for medical malpractice cases, you have to go before a pre-litigation panel comprised of several doctors to see if the case is one where the doctor could have breached the duty of care or if the case is frivolous. You must do that before pursuing the case in state or federal court.

Also, if you file suit in bad faith, all state and federal courts have the authority to impose "fines" by making you pay the other side's costs and fees in defending the frivolous suit. Rule 11 of pretty much every state's Rules of Civil Procedure authorizes this.

The system is far from perfect, but a lot of those imperfections are necessary evils to ensure that each person has access to the court system.

I agree. And also, the link between malpractice insurance rates and litigiousness has been shown to be far from solid. A far more indicative measure is the stock market--i.e., when the stock market is down, rates go up, and vice versa, independent of lawsuits.

I'm not making this up...I'll post a link when I find it...

I've investigated a lot of claims and handled a lot of litigation in most states in the US, many Provinces in Canada and a little in Puerto Rico. Most claimants, plaintiffs and lawyers are people with legitimate grievances and real injuries. Most have realistic expectations toward settlement and will be cooperative and considerate in achieving this. We can usually smell the bullsh+t claims coming and, if we apply some effort, we can dispose of them before they get too big. That's what good investigators do. You don't let expensive lawsuits happen. You don't hear about the hundreds of thousands of settled car accident injuries, dog bites, slip falls, malpractice claims etc, because things went well for both sides. Or the claim was completely shut down.

Yes in a lawsuit you can recover fees from an offer of judgement and such. However, last time I had an opportunity to do this was a court case we won in Dallas against an 70+ widow living on Social Security in, I believe, a trailor park. We wouldn't have seen a dime and we didn't waste our time. Recovery is a more or less a joke in your average BI lawsuit. The big thing now is binding arbtration agreements. Next time you look at your phone bill take a look at the terms printed on the back. One thing you will notice is that by using them you agree not to sue them but, instead, take your problem to a arb panel. This will eventually get struck down as unconstitional but hopefully will evolve into a screening system. I do agree with the article though that really the most dangerous thing to come from this is a lawsuit fear mentality.

Very true.

What I like is that people think malpractice suits are out of hand so, rather than see if doctors are fucking up, they want to ban lawsuits.

And boy oh boy, poor Big Tobacco. All they wanted to do was sell their addictive and lethal product to kids! Really the wrong example to use.

Quick, someone mention the McDonalds coffee lady so I can demolish you.

But devin, what about the McDonald's Coffee Lady? Surely THAT proves the frivolous lawsuit point!

Agreed. Don't want to get sued for malpractice? Here's an idea--DON'T CUT OFF THE WRONG APPENDAGE.

But that said, I'd be willing to bet that even if there were no lawsuits, that wouldn't lessen the insurance rates. They only go up, people, never down, whatever the reason.

I am looking for some back up for this but my understanding of the McDonalds Coffee lady is that she sustained 3rd degree burns to her genitals. That's how hot that coffee was (keeping the free refills down?). McDonalds was also so haughty in defending this they managed to piss off the judge, jury and everybody else. Supposedly. I do know that the case the Supreme Court heard that supposedly will limit punative jury awards was a heckava thing. I followed that one for years. What started as a $25,000 policy limits auto accident turned into a real nightmare for State Farm. The point is, a lot of stuff like this gets thrown around without detail. Many of these cases just cannot be fairly summarized in a few sentences.

And here's a link regarding the mcdonalds case. I cannot vouch for the source but googling around might help. It's essentially the same info a friend involved, briefly, in the case gave me above http://lawandhelp.com/q298-2.htm

I know, Gus, I just wanted to hear devin's take.

Sorry Scott.

To be honest, I'm fairly ambivalent towards the idea of civil lawsuits. On the one hand people deserve adequate recompense for suffering or inconvenience that they have endured. On the other, I would argue that far too many 'victims' equate an accident or other such misfortune to a winning lottery ticket.

Perhaps we should all re-(?)familiarise ourselves with the concept of 'social responsibility', and the seemingly 'forgotten' idea that the decisions we make every day (i.e. claiming for $240’s worth of DVDs when you only had $20’s worth stolen) impact upon the lives of those around us.

I guess the core question is whether the occasional and highly publicized exploitations of the system for outrageous gain are enough to make us chuck the whole thing despite the fact that the system also occasionally helps people who deserve it.

A bit like the old, "Is it better for one innocent man to die so that you can execute a hundred guilty men, or is it better to let a hundred guilty go to avoid executing that one innocent man?"

Though admittedly not as extreme.

This post of mine made no sense and I have wished it to the cornfield.

Well, I know three people who have recently made insurance claims and/or taken out civil lawsuits in relation to car accidents that were caused by circumstances out of their control.

I have absolutely no evidence to suggest that they have lied about their current medical conditions (interestingly, all suffer from 'whip-lash' injuries that, I am told, are extremely difficult to medically validate), but suffice to say that my rather unoffending (and somewhat tongue-in-cheek) enquires have been met with very wry smiles.

You wouldn't mind giving over their names and social security numbers would you? I hate to ask but with the Patriot Act and all....

They're a long way from Minneapolis; an ocean away in fact. <g>

For those who don't know about Campbell v. State Farm (it was big news here in Utah), Campbell killed a guy in Logan, Utah in an auto accident, had State Farm represent him (as they were his insurance company), he lost for 3x his policy limit ($150,000 total lost), State Farm wouldn't appeal (probably because it didn't have a good case, but that's beside the point), so Campbell turned around and sued State Farm. The jury awarded Campbell $2.6 million in compensatory damages and $145 million (56x compensation) in punitive damages. The trial court reduced damages to $1 million compensatory/$25 million punitive (25x compensation). Utah's Supreme Court reinstated the original jury award, and it went to the US Supreme Court. The Supreme Court completely reversed the decision saying that it was unreasonable, especially considering the most relevant charge against State Farm was Grand Fraud, subject to a $10,000 fine (in addition to actual damages).
In the end, the system worked, but it took 20 years for it to do so. Fortunately, using the due process clause of the 14th Amendment, they may have helped to check the outrageous punitive damages that have been awarded since around 1980. Historically, punitive damages had been capped at 3x actual damages until relatively recently.

I don't mind lawsuits with large compensatory damages, but where they have outrageous punitive damages there is clearly something wrong with the tort system.

It's what is RIGHT with the tort system. Do you think that State Farm gives a crap about a 10,000 dollar fine? That's nothing.

The way that business owns government has made it so that civil damages - hitting these people in their bank account - are the ONLY way to get them to pay attention and play nice.

But 56x compensatory? How much of that would even have gone to Campbell? A good majority would line the pockets of his law firm. I agree with 3x, that's a decent deterrent that doesn't run a company out of business, and it falls under that pesky "due process" clause. As a matter of fact, I seem to recall the Supreme Court saying that single digit multiples for punitive damages was about right, so up to 9x.

If I, as an individual, committed Grand Fraud, would you be worried about putting me out of business? Would you be concerned about how the time in prison would affect my livlihood?

A corporate entity must be faced with consequences equivalent to what I would face for the same crime.

Unless I'm wrong, civil courts cannot impose criminal punishments. If he wanted to stick it to State Farm, why not use the criminal courts? Instead, he went for the easy money. This was originally about making a quick buck (turned out to not be so quick, with the original case being so long ago) because HE screwed up. He killed the person, he accepted counsel from State Farm, he didn't have a case, he got nailed, State Farm wouldn't go any further because of that (why lose even more money for no reason?), and so he wanted revenge.

If he had taken some responsibility to begin with, maybe he wouldn't have been hit with a $150,000 settlement.